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Sentence arbitral du travail
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Award of the Labour Court ..
996
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Notifications du Gouvernement .. 1004
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Avis d’Adjudications
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Tender notices
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Dangerous Establishments
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Annonces
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Announcements
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Dated : 19-9-2017
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2017 } | 19 {
No.
38
Poudouchéry
Mardi
19
Septembre
2017 (28 Bhadra 1939)
No.
Puducherry
Tuesday
19th
September
2017
996
LA GAZETTE DE L’ETAT
[19 September 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 130/Lab/AIL/T/2017,
Puducherry, dated 21st August 2017)
NOTIFICATION
Whereas, the Award in I.D. (L) No. 46/2014,
dated 13-6-2017 of the Labour Court, Puducherry in
respect of the industrial dispute between the
Management of Pondicherry Co-operative Wholesale
Stores Limited, Puducherry and Thiru K. Karthikeyan,
Puducherry over non-employment has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947), read
with the notification issued in Labour Department's
G.O. Ms. No. 20/91/Lab./L, dated 23-5-91, it is hereby
directed by Secretary to Government (Labour) that the
said Award shall be published in the Official Gazette,
Puducherry.
A. RAJARATHINAM,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT AT PUDUCHERRY
Present: Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Tuesday, the 13th day of June 2017.
I.D. (L) No. 46/2014
Karthikeyan,
S/o. R. Krishnan,
No. 5, Balar Pillai Street,
Mettupalayam, Puducherry.
. . Petitioners
Versus
The Managing Director,
M/s. Pondicherry Co-operative
Wholesale Stores Limited,
Puducherry.
. . Respondent
This industrial dispute coming up before me for
final hearing on 2-5-2017 in the presence of
Thiru K. Velmurugan, Counsel for the petitioner and
Thiru B. Mohandoss, Counsel for the respondent, upon
hearing both sides, upon perusing the case records,
after having stood over for consideration till this day,
this Court passed the following :
AWARD
1. This industrial dispute has been referred by the
Government as per the G. O. Rt. No. 143/AIL/Lab./J/2014,
dated 24-12-2014 for adjudicating the following:
(i) Whether the dispute raised by the petitioner
Thiru K. Karthikeyan against the management of
M/s. Pondicherry Co-operative Wholesale Stores
Limited, Puducherry over his non-employment is
justified? If justified, what relief, he is entitled to ?
(ii) To compute the relief, if any awarded in
terms of money if, it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows :
(i) The petitioner joined in the respondent
management on consolidated basis during the month
of August, 2002 and due to his sincerity and hard
work the management appointed him as Daily rated
Salesman during the month of May, 2005 and since
from the date of his joining he discharged his
services in a sincere and honest manner to the
respondent management and further stated that he
was assigned work in the Amudhasurabhi Liquor
Shop, Muthialpet and on 31-8-2005 during the
midnight, a theft was occurred in the said Liquor
shop and the above fact was known to him only on
1-9-2005 morning when he opened the shop
along with other staffs and as instructed by the
Managing Director, Mr. Suresh, Legal Assistant and
Mr. Janagiraman, Deputy Manager (Liquor), the
petitioner had immediately lodged a police
complaint to the Station House Officer, Muthialpet
Police Station and thereby, the Police Officials
rushed to the spot, enquired the staffs and took their
fingerprints and also registered FIR in respect of
the above theft vide FIR No. 194/2005, dated 1-9-2005
and subsequently the management transferred him
to Vadamangalam Liquor shop on 16-9-2005 and while
being so, the management issued a show cause
notice to the petitioner alleging stock deficit to the
tune of ` 15,331 took place in the month of August,
2005 and thereby, the management asked the
petitioner to deposit the sum of ` 7,665.50 within
3 days of the notice. Immediately, the petitioner
approached the Managing Director Mr. P. Viveganandane
and explained him that the alleged stock deficit is
not due to any misappropriation but, only on
account of the theft that occurred on 1-9-2005, and
however, the Managing Director was not convinced
and insisted him to pay the deficit amount of
` 7,665.50 to stop the further proceedings.
However, on the same day i.e., 17-10-2005, he was
transferred to Head Office, Puducherry without any
reason and the management suspended him from
service vide letter, dated 19-10-2005 and when he
questioned the Managing Director, he said that it is
997
19 September 2017]
LA GAZETTE DE L’ETAT
the procedural formality and insisted him to pay the
full deficit amount of ` 7,665.50 to revoke the
suspension order and as such left with no other
option, on 20-10-2005, the petitioner has paid the
deficit amount to the management and also given
letter, dated 20-10-2005 for revocation of
suspension. But, on the contrary the management
had issued a charge-sheet, dated 21-10-2005 to the
petitioner with false allegations.
(ii) It is further stated that petitioner has
submitted a detailed explanation to the management
on 24-10-2005 but, the management did not
appreciated the facts and contentions made by him
and the management through a letter, dated
26-10-2005 appointed Mr. K. Balaji, Advocate as
Enquiry Officer to enquire into the charges levelled
against him and during the enquiry proceedings, the
petitioner has effectively defended himself and
examined two witnesses on his side and the said
witnesses deposed regarding the occurrence of
theft. However, the Enquiry Officer without properly
appreciating the evidence and deposition of
witnesses submitted his report, dated 28-2-2006
stating that the charges levelled in the charge memo,
dated 21-10-2005 was proved. During the period of
suspension the petitioner was compelled by the
respondent management to participate in the enquiry
proceedings without giving any single pie to him
towards subsistence allowance despite his several
oral representations and further that since from the
date of suspension and to till the date of dismissal,
the management has not paid any single penny to the
petitioner as suspension allowance and acted against
the principles of natural justice and labour
jurisprudence and the enquiry report submitted
thereof is liable to be quashed as null and void. The
Enquiry
Officer
though
recommended
the
management to show leniency upon the petitioner on
humanitarian grounds before inflicting punishment
upon him, it was not considering by the management
and they arbitrarily issued dismissal order, dated
3-3-2006 and thereby, terminated the services of the
petitioner which is against the doctrine of
proportionality and hence, the dismissal order
issued by the respondent management is void,
illegal, invalid, improper in the eye of law.
(iii) It is further stated that on 30-10-2006 the
petitioner made a representation to the management
to review the dismissal order, dated 3-3-2006 but,
no action has been taken by the management and
hence, he has filed a Writ petition before the
Hon'ble High Court of Madras under W.P. No. 8708
of 2010 to dispose off his review petition, dated
30-10-2006 and the same was allowed on 27-4-2010
by the Hon'ble High Court of Madras with a direction
to the management to dispose of the petitioner's
representation, dated 30-10-2006 within a period of
6 weeks and as such the management through letter
dated 18-5-2010 fixed enquiry on 28-5-2010 and
rejected his review petition vide order, dated 3-6-2010.
Aggrieved by the same, the petitioner has filed
another W.P. No. 17032 of 2010 before the Hon'ble
High Court of Madras for quashing the order, dated
3-6-2010 passed by the management and consequently
direct the management to reinstate the petitioner in
his service and in view of the endorsement made by the
petitioner's counsel on 9-1-2014, the Hon'ble High
Court of Madras passed an Order dismissing the
Writ petition as withdrawn granting liberty to
approach the appropriate authority.
(iv) It is further stated that on 19-2-2014, the
petitioner made a representation to the Labour
Officer (Conciliation), Puducherry to intervene in
the above issue in which the respondent management
submitted its reply on 10-6-2014 with evasive and
false allegations against the petitioner and since no
amicable settlement is reached between the parties
to the dispute, this industrial dispute has been
referred to this Court by the Government for
adjudication and further stated that the SHO,
Muthialpet Police Station has submitted the Final
Form Report No. 105/2006, dated 19-6-2006 in FIR
No. 194/2005 before the Judicial Magistrate-II,
Puducherry and thus, it is crystal clear that once FIR
is registered, the police officials came to the scene
of occurrence and done the investigation by
examining the witnesses, taking finger prints, etc.,
and thus, the act of the respondent without considering
the above factual points and imputing the false
charge of stock deficit upon the petitioner had no
legs to stand and further stated that the act of the
management is arbitrary, illegal, mala fide, unjust
and invalid in the eye of law and therefore, the order
of termination is liable to be set aside and further
that the management and the Enquiry Officer failed
to discuss anything about the theft occurred in the
Muthialpet Bar on 31-8-2005 inspite of several
representation made by the petitioner and the
statements made by the other independent witnesses
during the enquiry proceedings and further that the
Managing Director of the respondent management
was transferred on 28-2-2006, but, however without any
authority and sanction of law, the Managing Director
has passed the dismissal order, dated 3-3-2006 in a
hurried situation which reflects the mala fide
intention of the management and thus, the Managing
Director is incompetent to pass the dismissal order,
dated 3-3-2006 and hence, the dismissal order is
null and void having no effect in the eye of law.
(v) It is further stated that the respondent
management has not followed the principle of
natural justice and straight away issued the dismissal
order enclosing the enquiry report to the petitioner
998
LA GAZETTE DE L’ETAT
[19 September 2017
and that right from the beginning the management
was acted with a mala fide intention and ulterior
motive so as to terminate the services of the
petitioner at any cost and further stated that by the
act of the respondent, the petitioner's health got
deteriorated and he has spent nearly 1.5 lakhs for
all these years in filing Writ Petitions before the
Hon'ble High Court, travelling expenses, Advocate,
fees, etc., and the respondent management has not
paid any single pie to the petitioner till date
towards his terminal benefits and that the dismissal
order dated 3-3-2006 is arbitrary, null and void,
illegal, invalid, improper and hence, it is liable to
be set aside and prayed this Court to direct the
respondent management to reinstate the petitioner
in service with full back wages, continuity of
service and all other attendant benefits.
3. The brief averments of the counter statement
filed by the respondent are as follows :
The respondent denied all the averments made by
the petitioner in the claim petition and stated that
the petitioner was appointed initially on consolidated
basis and subsequently as daily rated Salesman and
the petitioner was not discharged his services in
a sincere and honest manner and there is no truth
on the allegation of the petitioner that a theft was
occurred on 31-8-2005 at midnight at Amudhasurabi
Liquor Shop, Muthialpet, Puducherry and further
stated that the disciplinary proceedings was
initiated against the petitioner for the charge
described in the charge memo, dated 21-10-2005
towards misappropriation of amount of ` 15,331 on
1-9-2005 by committing stock deficit and the said
act of misappropriation by the petitioner was
a misconduct as per clause 29(26) of service
regulations and it also attract misconduct of
negligence as per clause 29(1) of the service regulations
and the act of commission will come under the
purview of the misconduct and fails to maintain
absolute integrity and devotion to duty which attract
under clause 28(3)(2) of service regulation and that
based on the charges, domestic enquiry was
conducted by an independent person namely, Thiru
K. Balaji, Advocate, Puducherry and as per the
findings of the Enquiry Officer all the charges of
misconduct were proved and as such the management
issued the order of termination dated 3-3-2006 by
a speaking order based on principle of natural
justice and further stated that the deficit amount was
paid by the petitioner voluntarily and that the
payment of stock deficit amount will not wipe out
the charges of misconduct as per the principle of
labour jurisprudence and the punishment of dismissal
order, dated 3-3-2006 was passed based on the
gravity of misconduct and there is no possibility to
consider for employment of the petitioner and prays
to dismiss the claim petition of the petitioner.
4. In the course of enquiry WW.1 was examined
and Ex.W1 to Ex.W32 were marked and on the side of
the respondent RW.1 was examined and Ex.R1 and
Ex.R2 were marked.
5. The point for consideration is:
Whether the dispute raised by the petitioner
against the respondent management over his
non-employment is justified or not and whether the
petitioner is entitled for the relief as claimed by
him?
6. Both sides are heard. The submission of both
the parties, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
In support of his contention the learned Counsel for
the
petitioner has relied upon the Judgment
reported in (i) 2013 (3) MLJ 101, (ii) CDJ 2013
MHC 2606, (iii) CDJ 2013 MHC 868. On the other
hand, the learned Counsel appearing for the respondent
management has also relied upon the following
Judgments : (i) CDJ 2006 SC 662, (ii) CDJ 2006 SC
1072, (iii) CDJ 2007 MHC 281, (iv) CDJ 2006 SC
305, (v) CDJ 2006 SC 113.
7. It is not in dispute that, the petitioner has
joined in the respondent management on consolidated
basis in the month of August, 2002 and subsequently,
he was appointed as daily rated Salesman during the
month of May, 2005 and he has discharged his service
assigned by the respondent management at Amudhasurabi
Liquor Shop and due to some deficit in the stock the
disciplinary proceedings was initiated against the
petitioner for misappropriation of amount to the tune
of ` 15,331 by committing stock deficit and after the
enquiry was conducted by the Enquiry Officer the
petitioner was terminated from service on 3-3-2006.
8. It is the evidence of WW.1 that he has not
committed any deficit in the stock and that there was
a theft taken place at the Liquor shop on the mid-night
of 31-8-2005 and the police complaint has been
lodged on 1-9-2005 before the Muthialpet Police
Station and they have registered FIR in Cr. No. 194/
2005 and subsequently he was transferred from
Amudhasurabi Liquor Shop to Vadamangalam Liquor
Shop on 16-9-2005 and the respondent management
has issued a show cause notice to the petitioner for
stock deficit to the tune of ` 15,331 and he has not
misappropriated any amount as alleged by the
respondent and only stock deficit occurred due to the
theft taken place on the mid-night of 31-8-2005 and
after the receipt of the notice for stock deficit he
approached the Managing Director of the respondent
management and the Managing Director insisted him
to pay the deficit amount of
` 7,665.50 to the
management and he was suspended from service and
subsequently he has paid the deficit amount on
20-10-2005 to the respondent management and
999
19 September 2017]
LA GAZETTE DE L’ETAT
subsequently the domestic enquiry was conducted
without following the procedure and the petitioner has
been permitted to participate in the enquiry
proceedings and a report was submitted on 28-2-2006
and no subsistence allowance was paid to him and he
was terminated from service on 3-3-2006 and he
approached the Hon'ble High Court in W.P. No. 8708
of 2010 and the Hon'ble High Court was directed the
respondent management to dispose the petitioner's
representation, dated 30-10-2006 within a period of
6 weeks and the respondent management fixed an
enquiry on 28-5-2010 and rejected his review petition
on 3-6-2010 against which the petitioner had filed a
Writ Petition in W.P. No. 17032 of 2010 to quash the
order passed by the respondent management and to
reinstate the petitioner in service and however in view
of the endorsement of the petitioner's Counsel on 9-1-2014
the Hon'ble High Court was pleased to dismiss the
Writ Petition as withdrawn granting liberty to approach
the appropriate authority and the respondent has not
followed the procedure of principles of natural justice
straight away issued the dismissal order enclosing the
enquiry report to the petitioner and the respondent
management and the Enquiry Officer have failed to
discuss about the theft occurred in the mid-night of
31-8-2005. In order to prove the case of the
petitioner, apart from the oral evidence of WW.1, the
petitioner has exhibited Ex.Wl to Ex.W32. The oral
evidence of WW.1 and the documents marked by him
would evident that on 1-9-2005 the Muthialpet Police
Station has registered a case for the theft committed
at the respondent establishment wherein, the petitioner
was working and it was closed as undetected on 19-6-2006
and subsequently, the petitioner was transferred to
other establishment of the respondent and he was
suspended from service and the petitioner made some
representation to the respondent management and has
given explanation and enquiry was conducted against
him and subsequently he was terminated from service
against which he has filed Writ Petitions before the
Hon'ble High Court and the petitioner has obtained
some information under the Right to Information Act.
9. On the side of the respondent, the Deputy
Manager of Pondicherry Co-operative Wholesale
Stores Limited was examined as RW.1 and he has
stated in his evidence that it is true that the petitioner
has joined in the Pondicherry Co-operative Wholesale
Stores Limited initially on consolidated basis and
subsequently as daily rated Salesman during the May,
2005 and that the petitioner was assigned to work in
the Amudhasurabi Liquor Shop, Muthialpet by the
respondent management and however, there is no truth
in the allegation that he has discharged his service in
a sincere and honest manner without any blemish and
also the allegation that on 31-8-2005 during the
mid-night a theft occurred in the Amudhasurabi Liquor
Shop and further he deposed that the respondent has
taken disciplinary action for the mis-conduct committed
by the petitioner and that there is a deficit in the stock
as per the stock register and that therefore, the petitioner
has committed mis-appropriation on 1-9-2005 by
deficiting the stock of the Amudhasurabi Liquor Shop
and the domestic enquiry was conducted by an
independent person and in the enquiry the charges of
mis-conduct was proved against the petitioner and
a report was submitted by the Enquiry Officer on 28-2-2006
and that therefore the petitioner was given an
opportunity to defend his charge and hence, the
management has dismissed the petitioner from service
through office order, dated 3-3-2006 by a speaking
order and that therefore, the petitioner is not entitled
for any reinstatement.
10. From the evidence of RW.1, it is clear that
the contention of the respondent management is that the
petitioner had committed misconduct of misappropriation
to the tune of ` 15,331 on 1-9-2005 and the domestic
enquiry was conducted in accordance with the natural
justice and thereby, he has been removed from service
and hence, the petitioner is not entitled for any order
of reinstatement. On the other hand, it is clear from
the pleadings of the petitioner that the contention of
the petitioner is that the stock deficit was occurred
only due to the theft occurred on the mid-night of
31-8-2005 for which the FIR was registered on 1-9-2005
and the deficit amount also has been paid by him as
directed by the management and he has not been given
appropriate opportunity in the domestic enquiry and
even the Enquiry Officer who conducted the domestic
enquiry has recommended that to give only lenient
punishment to him, it was not considered by the
management and it is also clear from the evidence of
WW.1 that the further contention of the petitioner is
that he has not committed any misappropriation as
alleged by the respondent management and theft is the
only reason for the stock deficit and after the enquiry,
the respondent management has not given any show
cause notice before passing the order of termination
of service of the petitioner and though the petitioner
was under suspension the subsistence allowance has
not been paid to the petitioner while the domestic
enquiry was conducted.
11. The learned Counsel appearing for the
petitioner pointed out that they have proved the fact
of theft was committed at Amudhasurabi Liquor
Shop by filing the copy of the FIR registered by the
Muthialpet Police Station as Ex.W1 and that the
respondent management has not given opportunity by
issuing a show cause notice to decide the punishment
which is to be given to the petitioner after getting
domestic enquiry report from the Enquiry Officer and
that the domestic enquiry was not in accordance with
the principles of natural justice and since even the
petitioner has not given subsistence allowance though
he was suspended at the time of conducting the
domestic enquiry.
1000
LA GAZETTE DE L’ETAT
[19 September 2017
12. On this aspect the evidence of RW.1 was
perused which runs as follows:
“
Memo
Memo
”
From the above evidence, it is clear that the
petitioner has not committed any other mis-conduct
in their service except the stock deficit alleged to
have been committed by him on 1-9-2005 and
further it is also clear that the respondent
management would not take any further action for
the stock deficit if, the explanation is accepted by
them for the stock deficit. But, in this case, they
have not exhibited any explanation of any one of the
employee before this Court.
Further evidence of RW.1 runs as follows :
“.................
`
Managing Director
”
From the above evidence, it is clear that the
respondent management has admitted the fact that
information in Ex.W32 was issued by the
respondent Co-operative Stores Limited under the
Right to Information Act to the petitioner and it is
also admitted by the respondent management RW.1
that for every year the respondent management has
found not less than 100 workmen are committing
stock deficit and from the year 2000-2015 for
about 15 years not less than 1,500 workmen have
committed stock deficit in which only 4 persons
have been terminated and furthermore, it is also
admitted by RW.1 that one Manikandan whose name
was mentioned in Ex.W32 and who was removed
from service by the respondent management for
misappropriation by committing stock deficit has
been once again appointed in the respondent Co-
operative Stores Limited and furthermore, though
admittedly 1,500 workmen alleged to have been
committed misappropriation by committing stock
deficit the respondent management has failed to
state that why 1496 workmen have been left without
any punishment of termination of service since 4
only have been given punishment of termination of
service. These facts would go to show that the
respondent management has not taken any uniform
stand in taking disciplinary action in respect of
misappropriation committed by the workers. Though
admittedly, 1,500 workmen have been committed
stock deficit, nothing is before this Court why
1,496 workmen have not been terminated from
service and 4 of them alone have been terminated
from service for the charge of stock deficit.
13. All the citations relied upon by the
respondent management has enlightened that if any
workman, committed any misappropriation it should be
viewed seriously and has to be punished severely. But,
in this case, admittedly the FIR has been registered
by the police for the offence of theft of some goods
in the Liquor shop and the same was admitted by the
respondent side. Mere the case was closed as
undetected could not amount that this petitioner and
the Junior Assistant have committed stock deficit and
that therefore, the charges levelled against the
1001
19 September 2017]
LA GAZETTE DE L’ETAT
petitioner
itself
is
suspicious
and
in
such
circumstances, the severe punishment of termination
from service cannot be imposed and hence, the
punishment of termination is not a reasonable one in
this case.
14. Particularly, in this case admittedly, the FIR
has been registered by the police for the offence of
theft alleged to have been happened on the mid-night
of 31-8-2005 which would go to show that there might
be a theft in the said night and thereby, the stock deficit
might have been happened on 1-9-2005 when the
respondent officers audited the same. This alone is
sufficient that there is a suspicion over the alleged
mis-conduct of charge levelled against the petitioner
that he has committed stock deficit. Though the police
might not have found out the accused who has
committed the theft and closed the case as undetected
that alone is not sufficient to conclude that this
petitioner alone has committed stock deficit with the
intention of misappropriate the funds of the
respondent and thereby, the decision taken by the
Enquiry Officer that the petitioner has committed
stock deficit in the domestic enquiry is not sustainable
and therefore, the decision taken by the respondent
management and the Enquiry Officer that conclusively
the petitioner has committed stock deficit cannot be
accepted.
15. Furthermore, as far as the punishment of
termination from the service of the petitioner is
concerned, it is contended by the petitioner that the
respondent management has not given any show cause
notice to the petitioner to decide the punishment.
It is learnt from Ex.W12 - Enquiry report that the
enquiry was finalized and the report was made only on
28-2-2006 and the petitioner was terminated on 3-3-2006
without giving any notice. The respondent also has not
exhibited any such notice before this Court that they
have issued any notice to the petitioner for giving an
opportunity to make his representation as to why the
proposed punishment should not be inflicted against
him. In this case, no notice was sent by the respondent
management to the petitioner after getting the report
from the Enquiry Officer before terminating the
petitioner from service. As admittedly, no notice was
given to him by the respondent management, it is clear
that they have not followed the procedures laid down
under the Constitution of India under Article 311(2)
by refusing the reasonable opportunity to the
petitioner. It is mandate to give an opportunity to the
petitioner to make his representation as to why the
proposed punishment should not be inflicted against
him. But, in this case, no notice was issued before
passing the order of termination of the petitioner from
service. Hence, it is clear that the respondent
management has not followed the principles of natural
justice in giving opportunity to the petitioner before
terminating the petitioner from service.
16. Furthermore, the learned Counsel appearing
for the petitioner relied upon the Judgment reported
in CDJ 2013 MHC 2606, in which the Hon'ble High
Court of Madras has observed that,
“As rightly argued by the learned Counsel for the
second respondent that when the petitioner was
placed under suspension from 11-3-1996, it was the
bounden duty of the petitioner Management to pay
the subsistence allowance till passing of the final
order of termination on 1-9-2000. But, the
petitioner Management paid the subsistence
allowance from 11-3-1996 to 31-10-1998 only and
after 1-11-1998 for the reason best known to them,
they stopped the subsistence allowance. Since, the
enquiry was held after 31-10-1999, the petitioner
Management
financially prevented the second
respondent employee from participating in the
enquiry for the reason of non-payment of
subsistence allowance. In this context, the Law is
well stated that
“the payment of subsistence allowance to an
employee under suspension was not a bounty but,
a right. No justifiable ground was made out by the
respondents for non-payment of the subsistence
allowance. The appellant was unable to appear in
the enquiry on account of non-payment of
subsistence allowance. It was a clear case of
breach of principles of natural justice.”
From the above observation of the Hon'ble High
Court, it is clear that whenever the workman is
suspended, he should be given subsistence allowance
till the end of the disciplinary action, otherwise it
can be inferred that the respondent management has
financially
prevented
the
workman
from
participating in the enquiry for the reason of non-
payment of subsistence allowance. In this case, also
admittedly, the petitioner was not given subsistence
allowance by the respondent management throughout
the domestic enquiry and hence, it can be inferred
that the petitioner was financially prevented from
participating the enquiry. Furthermore, as rightly
pointed out by the petitioner's Counsel admittedly
though the petitioner has paid entire deficit amount
within the short period of 10 days from the date of
show cause notice, the punishment of termination
is highly excessive and he can be given lighter
punishment and furthermore, while 1496 delinquent
workmen have been left without any punishment of
termination of service, though the petitioner has
1002
LA GAZETTE DE L’ETAT
[19 September 2017
paid the stock deficit amount as directed by the
respondent management, the punishment given to
the petitioner is highly excessive and that therefore,
for the foregoing reasons, it is clear that the
punishment given by the respondent management
that terminating the petitioner from service is not
sustainable and unlawful and hence, the dispute
raised by the petitioner before the Conciliation
Officer is justified and the petitioner is entitled for
order of reinstatement.
17. As this Court has decided that the industrial
dispute
raised
by
the
petitioner
before
the
Conciliation Officer is justified, it is to be decided
whether the petitioner is entitled for back wages with
continuity of service as claimed by the petitioner. In
respect of the backwages and other attendant benefits
absolutely there is no evidence that the petitioner was
not working anywhere else after the dismissal and that
therefore, he cannot be given full back wages.
However, it is not the case of the respondent that the
petitioner is working anywhere else and hence
considering all the above facts and circumstances and
the above foregoing reasons, this Court finds that the
petitioner is entitled for only part of back wages and
hence, this Court tentatively fix that the petitioner is
entitled only for 25% back wages.
18. In the result, the petition is partly allowed and
the industrial dispute raised by the petitioner over the
non-employment is justified and an Award is passed by
directing the respondent to reinstate the petitioner in
service with continuity of service and further directed
the respondent management to pay 25% of back wages
to the petitioner from the date of raising the industrial
dispute before the Conciliation Officer till the date of
reinstatement with other attendant benefits. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 13th day of June, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
List of
petitioner’s witness:
WW.1
— 23-1-2016
— Karthikeyan
List of petitioner’s exhibits:
Ex.W1 —
1-9-2005
— Copy of the FIR No.
194/2005 by the Station
House Officer, Muthialpet,
Police Station.
Ex.W2 — 19-6-2006
— Copy of the Final Form
Report No. 105/2006 in
FIR. No. 194/2005 submitted
by the Station House
Officer, Muthialpet, Police
Station to the Hon'ble
Judicial Magistrate-II,
Puducherry.
Ex.W3 — 16-9-2005
— Copy of the transfer
order of the petitioner
issued by the management.
Ex.W4 —17-10-2005 — Copy of the transfer
order of the petitioner
issued by the management.
Ex.W5 —19-10-2005 — Copy of the Suspension
order of the petitioner
issued by the management.
Ex.W6 —18-10-2005 — Copy
of
the
letter
submitted by the petitioner
to the management.
Ex.W7 —20-10-2005 — Copy of the receipt
issued by the respondent
towards payment of the
deficit amount paid by
the petitioner.
Ex.W8 —20-10-2005 — Copy of the letter given
by the petitioner to the
management.
Ex.W9 —21-10-2005 — Copy of the charge-
sheet
issued
by
the
respondent management.
Ex.W10—24-10-2005 — Copy of the explanation
letter
sent
by
the
petitioner
to
the
respondent management.
Ex.W11—26-10-2005 — Copy of the Enquiry
Officer ap po intment
letter.
Ex.W12—28-2-2006
— Copy of the enquiry
report.
Ex.W13— 3-3-2006
— Copy of the dismissal
order issued by the
management.
Ex.W14—30-10-2006 — Copy of the letter given
by the petitioner to the
management requesting
review of the dismissal
order.
1003
19 September 2017]
LA GAZETTE DE L’ETAT
Ex.W15—27-4-2010
— Copy of the order of the
Hon'ble High Court of
Madras
in
W.P.No.
8708/2010.
Ex.W16—18-5-2010
— Copy of the letter sent
by the management to
the petitioner.
Ex.W17— 3-6-2010
— Copy of the order sent
by
the
management
rejecting the petitioner's
review petition.
Ex.W18— 9-1-2014
— Copy of the order of the
H o n 'b l e H i g h C o u r t
of
Madras
in
W.P.
No. 17032/2010.
Ex.W19—19-2-2014
— Copy
of
the
representation made by
the petitioner to the Labour
Officer (Conciliation),
Puducherry.
Ex.W20—10-6-2014
— Copy of the reply letter
s u b m i t t e d b y t h e
respondent to the Labour
Officer (Conciliation),
Puducherry.
Ex.W21—26-6-2014
— Copy of the objection
letter submitted by the
petitioner to the Labour
Officer (Conciliation),
Puducherry.
Ex.W22—26-9-2014
— Copy of the failure
report forwarded by
the
Labour
Officer
(Conciliation), Puducherry
to
the
Secretary
to
Government (Labour),
Puducherry.
Ex.W23—10-10-2005 — Copy of the Memo.
issued by the respondent
management
to
the
petitioner.
Ex.W24—23-10-2006 — Copy of the reminder
letter submitted by the
petitioner
to
the
respondent.
Ex.W25—19-1-2010
— Copy
of
the
RTI
application submitted by
the petitioner to the
PIO
of
respondent
management.
Ex.W26—13-2-2010
— Copy of the RTI reply
given by the respondent
to the petitioner.
Ex.W27— 8-2-2014
— Copy
of
the
RTI
application submitted by
the petitioner to the PIO
of respondent management.
Ex.W28—28-2-2014
— Copy of the RTI reply
given by the respondent
to the petitioner.
Ex.W29— 11-3-2014
— Copy of the RTI Appeal
s u b m i t t e d
b y
t h e
petitioner to the Registrar
of Co-operative Societies,
Puducherry (1st Appellate
Authority).
Ex.W30—15-4-2014
— Copy
of
the
Order
passed by the Registrar
of Co-operative Sovieties,
Puducherry (1st Appellate
Authority).
Ex.W31—21-3-2014
— Copy of the letter sent
by
the
respondent
management
to
the
petitioner along with
enclosure.
Ex.W32—13-2-2016
— Copy of the reply to
Form-I, dated 14-1-2016
filed under the Right to
Information Act, 2005.
List of respondent’s witness:
RW1
— 14-2-2017
— R.T. Gunasekaran
List of respondent’s exhibits:
Ex.Rl
—
— Copy of the Employees'
Service Regulations of the
P o n d i c h e r r y
Cooperative Wholesale
Stores
Limited,
P44
(Amudhasurabi).
Ex.R2
— 27-7-2010
— Copy
of
the
Writ
Petition in W.P. No.
17031/2010 filed by
R. Ramesh before the
Hon'ble High Court of
Madras.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.